Professional Documents
Culture Documents
CRIMINAL LAW i.
CRIMINAL LAW
TABLE OF CONTENTS
3. Infamous Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Crimes Involving Moral Turpitude . . . . . . . . . . . . . . . . . . . . . . . . 5
E. PRINCIPLE OF LEGALITY—VOID-FOR-VAGUENESS DOCTRINE . . . . . . . . . 5
1. Fair Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Arbitrary and Discriminatory Enforcement Must Be Avoided . . . . . . 5
F. CONSTITUTIONAL LIMITATIONS ON CRIME CREATION . . . . . . . . . . . . . . 5
1. No Ex Post Facto Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. No Bills of Attainder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
G. INTERPRETATIONS OF CRIMINAL STATUTES . . . . . . . . . . . . . . . . . . . . . 6
1. Plain Meaning Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Ambiguous Statutes Strictly Construed in Favor of Defendant . . . . . 6
3. Expressio Unius, Exclusio Alterius . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. The Specific Controls the General, the More Recent Controls the
Earlier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Effect of Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Saving Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H. MERGER
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Common Law Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Merger of Misdemeanor into Felony . . . . . . . . . . . . . . . . . . . . 7
b. No Merger Among Offenses of Same Degree . . . . . . . . . . . . . . 7
2. Modern Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a. “Merger” of Solicitation or Attempt into Completed Crime . . . . . 8
1) “Merger” of More than One Inchoate Crime . . . . . . . . . . . . 8
b. “Merger” of Lesser Included Offenses into Greater Offenses . . . . 8
3. Developing Rules Against Multiple Convictions for Parts of Same
“Transaction” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. No Double Jeopardy If Statute Provides Multiple Punishments
for Single Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. ESSENTIAL ELEMENTS OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. ELEMENTS OF A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. PHYSICAL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Act Must Be Voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Omission as an “Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Legal Duty to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CRIMINAL LAW iii.
CRIMINAL LAW
INTRODUCTION: GENERAL APPROACH
The Multistate Examination directs examinees to answer questions according to “the gener-
ally accepted view” unless otherwise noted. In Criminal Law, the examiners may tell you the
law to apply if there is no prevailing view. For example:
(1) The call of a question might tell you that the common law applies or that the state follows
the Model Penal Code (“M.P.C.”) approach; hence, you should be familiar with both the
common law rules and the important M.P.C. distinctions discussed in this outline.
(2) A fact pattern may also include a statute that you are to apply to the facts; the outline
discusses typical statutes on a variety of chapters that may be the subject of examination
questions.
(3) Finally, a question might reference a well-known legal doctrine (e.g., the Wharton rule or
the M’Naghten test); you should review those doctrines in the outline as well.
Note that if the examiners do not tell you whether the common law or a statutory version of
the crime applies, it likely means that specific elements of the crime are not relevant to the
question—for example, the question may concern whether voluntary intoxication is a defense
to a crime, in which case the relevant factor is what type of mental state the crime requires,
not other elements of the crime that may vary from jurisdiction to jurisdiction.
A. JURISDICTION
As used in this section, jurisdiction means the authority of a sovereign to create substan-
tive criminal law. The authority of a court to enforce criminal laws is also an aspect of
jurisdiction, but is more properly treated as a matter of criminal procedure.
EXAMPLE
A libelous statement may be made a crime where it is published, not where it is
written, because the crime of libel proscribes the act of publication rather than
the act of writing the libelous statement.
2. Constitutional Crimes
The Constitution defines treason as levying war against the United States, adhering
to enemies of the United States, or giving them aid and comfort. No person can be
convicted of treason unless two witnesses testify to the same overt act, or unless
the defendant confesses.
3. Administrative Crimes
A legislature may delegate to an administrative agency the power to prescribe rules,
the violation of which may be punishable as a crime. Note, however, that the legisla-
ture may not delegate the power to determine which regulations shall carry criminal
penalties; nor may it delegate the power of adjudication (i.e., the determination of
guilt or innocence). With the proliferation of administrative agencies, this source of
criminal law is becoming increasingly important.
4. CRIMINAL LAW
EXAMPLE
Violation of the antifraud rules adopted by the Securities and Exchange Commission
may result in severe criminal liability.
C. THEORIES OF PUNISHMENT
Historically, several theories have been advanced to justify criminal punishment.
1. Incapacitation (Restraint)
While imprisoned, a criminal has fewer opportunities to commit acts causing harm to
society.
2. Special Deterrence
Punishment may deter the criminal from committing future crimes.
3. General Deterrence
Punishment may deter persons other than the criminal from committing similar
crimes for fear of incurring the same punishment.
4. Retribution
Punishment is imposed to vent society’s sense of outrage and need for revenge.
5. Rehabilitation
Imprisonment provides the opportunity to mold or reform the criminal into a person
who, upon return to society, will conform her behavior to societal norms.
6. Education
The publicity attending the trial, conviction, and punishment of some criminals
serves to educate the public to distinguish between good and bad conduct and to
develop respect for the law.
D. CLASSIFICATION OF CRIMES
At common law, all crimes were divided into three classes: treason, felonies, and misde-
meanors. Several additional means of classifying crimes are now frequently employed
either by the courts or by state statutory schemes.
exceeding one year. Under such modern schemes, misdemeanors are crimes
punishable by imprisonment for less than one year or by a fine only. At common
law, the only felonies were murder, manslaughter, rape, sodomy, mayhem, robbery,
larceny, arson, and burglary; all other crimes were considered misdemeanors.
EXAMPLE
Battery, larceny, and drunken driving are mala in se, whereas hunting without a li-
cense, failure to comply with the Federal Drug Labeling Act, and driving in excess of
the speed limit are mala prohibita.
3. Infamous Crimes
At common law, infamous crimes are all crimes involving fraud, dishonesty, or the
obstruction of justice. Under modern law, this concept has been expanded to include
most felonies.
1. Fair Warning
A statute must give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute.
specific to provide fair warning and prevent arbitrary enforcement, Article I of the
federal Constitution places two substantive limitations on both federal and state legis-
latures.
2. No Bills of Attainder
Bills of attainder are also constitutionally prohibited. A bill of attainder is a legislative
act that inflicts punishment or denies a privilege without a judicial trial. Although a
bill of attainder may also be an ex post facto law, a distinction can be drawn in that
an ex post facto law does not deprive the offender of a judicial trial.
EXAMPLE
A criminal statute defines bigamy as the act of remarriage by one who has a living
spouse. The statute expressly provides an exception for one whose spouse disap-
peared more than seven years before. Can a person remarry if the spouse has been
gone for less than seven years provided he or she believes in good faith that the
spouse is dead? Most jurisdictions answer no. The fact that the statute provides one
exception impliedly excludes all others.
4. The Specific Controls the General, the More Recent Controls the Earlier
If two statutes address the same subject matter but dictate different conclusions, the
more specific statute will be applied rather than the more general. The more recently
enacted statute will control an older statute.
EXAMPLES
1) If one statute prohibits all forms of gambling and another permits charity-spon-
sored raffles, the latter will control a church raffle.
2) A 1980 statute banning advertising of cigarettes will govern a 1975 statute provid-
ing a limit on advertising expenditure by cigarette manufacturers.
5. Effect of Repeal
At common law, in the absence of a saving provision, the repeal or invalidation of
a statute operates to bar prosecutions for earlier violations, provided the prosecu-
tion is pending or not yet under way at the time of the repeal. However, a repeal will
not operate to set free a person who has been prosecuted and convicted and as to
whom the judgment has become final.
a. Saving Provision
Many of the new comprehensive codes include a provision to the effect that
crimes committed prior to the effective date of the new code are subject to
prosecution and punishment under the law as it existed at the time the offense
was committed.
H. MERGER
1. Common Law Rule
2. Modern Rule
There is generally no merger in American law, with the following limited exceptions:
EXAMPLES
1) D allegedly possessed certain narcotics. On the basis of this, she is charged
with (1) illegal possession of narcotics, (2) illegal possession of narcotics for sale,
and (3) possession of a drug not in a properly stamped container. May she be
convicted of all three offenses? Held: No. She may not be convicted of simple
possession and possession for sale. She may be convicted of possession for
sale and possession in an improper container, because neither is a lesser in-
cluded offense of the other. Each requires proof of something the other does
not, i.e., intent to sell and use of an improper container.
2) D is convicted of operating a motor vehicle without the owner’s consent. She
is then charged with stealing the vehicle based upon the same incident. Operat-
ing the vehicle without the owner’s consent is a lesser included offense of theft,
CRIMINAL LAW 9.
EXAMPLE
D robs a store at gunpoint. D can be sentenced to cumulative punishments for
armed robbery and “armed criminal action” under a “use a gun, go to jail” statute.
A. ELEMENTS OF A CRIME
Culpability under Anglo-American criminal law is founded upon certain basic premises
that are more or less strictly observed by legislatures and courts when formulating the
substantive law of crimes. Consequently, the prosecution is generally required to prove
the following elements of a criminal offense:
1. Actus Reus (guilty act): A physical act (or unlawful omission) by the defendant;
2. Mens Rea (guilty mind): The state of mind or intent of the defendant at the time of
his act;
10. CRIMINAL LAW
3. Concurrence: The physical act and the mental state existed at the same time; and
4. Harmful Result and Causation: A harmful result caused (both factually and proxi-
mately) by the defendant’s act.
Virtually all crimes require a physical act and may require some sort of intent. Many
crimes also require proof of certain attendant circumstances without which the same
act and intent would not be criminal. For example, the crime of receipt of stolen property
requires that the property received has in fact been stolen. If the defendant receives
property (the act) that he believes to have been stolen (the mental element), when in fact
the property has not been stolen, the absence of this required circumstance renders the
defendant not liable for receipt of stolen property. Other crimes require result and causa-
tion. Homicide, for example, requires that the victim die and that the defendant’s act be
the cause of death.
B. PHYSICAL ACT
For there to be criminal liability, the defendant must have either performed a voluntary
physical act or failed to act under circumstances imposing a legal duty to act. For this
purpose, an act is defined as a bodily movement. A thought is not an act. Therefore, bad
thoughts alone cannot constitute a crime. Note, however, that speech, unlike thought, is
an act that can cause liability (e.g., perjury, solicitation).
EXAMPLE
A shoves B into C, with the result that C falls to his death. Can B be held crimi-
nally liable for C’s death? No.
c. Acts performed while the defendant was either unconscious or asleep unless
the defendant knew that she might fall asleep or become unconscious and
engaged in dangerous behavior.
2. Omission as an “Act”
Although most crimes are committed by affirmative action rather than by nonaction,
a defendant’s failure to act will result in criminal liability provided three require-
ments are satisfied.
CRIMINAL LAW 11.
3) The relationship between the defendant and the victim, which may be
sufficiently close to create a duty.
EXAMPLES
1) A parent has the duty to prevent physical harm to his or her children.
2) A spouse has the duty to prevent harm to his or her spouse.
EXAMPLES
1) A, while hiking, sees B drowning in a river. Although A is a good swimmer,
he takes no steps to save B, who drowns. Was A’s failure to act an “act”
upon which liability could be based? No, because A had no duty to act.
Note that the answer would be the same even if A recognized B as a per-
son whom he disliked and took great pleasure in watching B drown.
2) If A began to swim out toward B and only after reaching B decided that
B was someone not worth saving, A would have violated his duty to act by
unreasonably abandoning a rescue effort that was voluntarily undertaken.
EXAMPLE
Believing that B can swim, A pushes B into a pool. It becomes apparent that
B cannot swim, but A takes no steps to help B. B drowns. Was A’s failure to
attempt a rescue an “act” on which liability can be based? Yes.
drowning before his failure to rescue the child will make him liable). However,
in some situations the law will impose a duty to learn the facts (e.g., a lifeguard
asleep at his post would still have a legal duty to aid a drowning swimmer).
EXAMPLE
A parent who is unable to swim is under no duty to jump in the water to attempt
to save his drowning child.
3. Possession as an “Act”
Criminal statutes that penalize the possession of contraband generally require only
that the defendant have control of the item for a long enough period to have an
opportunity to terminate the possession. Possession need not be exclusive to one
person, and possession also may be “constructive,” meaning that actual physical
control need not be proved when the contraband is located in an area within the
defendant’s “dominion and control.”
C. MENTAL STATE
1. Purpose of Mens Rea Requirement
The reason that mens rea is normally required is to distinguish between inadvertent
or accidental acts and acts performed by one with a “guilty mind.” The latter type of
act is more blameworthy and, arguably, can be deterred. However, in some cases
(strict liability crimes), mens rea is not required.
2. Specific Intent
If the definition of a crime requires not only the doing of an act, but the doing of it
with a specific intent or objective, the crime is a “specific intent” crime.
a. Significance
It is necessary to identify specific intent for two reasons:
CRIMINAL LAW 13.
EXAMPLE
A shoots B. The fact that A shot B does not show that A had the intent to
shoot and kill B. However, if A bought a revolver and ammunition shortly be-
fore shooting B, carefully loaded the revolver, took careful aim at B, and fired
several times, that evidence may circumstantially prove A’s intent to kill B.
arson—sound similar to specific intent (e.g., the “intent to kill” for murder), these
crimes are not open to the specific intent defenses. The common law created this
special mental state category especially to deny to murder and arson the specific
intent defenses. To establish malice in these cases, the prosecution need only show
that the defendant recklessly disregarded an obvious or high risk that the particular
harmful result would occur.
EXAMPLE
To commit the crime of false imprisonment (see VII.D., infra), the defendant must be
aware that she is confining a person, and that the confinement has not been specifi-
cally authorized by law or validly consented to by the person confined.
EXAMPLE
Federal legislation prohibits the transfer of firearms not registered under federal
law. Is it a defense that the defendant was ignorant of the fact that a firearm was
not registered? Held: No, because this is a strict liability offense. Awareness
of the fact of nonregistration is not necessary, although it is necessary that the
defendant have been aware of the fact that she was possessing a firearm.
COMPARE
Federal legislation requires registration of any fully automatic machinegun. The
statute is silent on the question of mental state and provides a penalty of up to
10 years’ imprisonment. Held: Defendant may assert as a defense that he was
not aware that the weapon in his possession was automatic. The type of statute
and the harsh penalty indicate that Congress did not intend to dispense with
the mens rea requirement. [Staples v. United States, 511 U.S. 600 (1994)]
b. Constitutionality
The majority view is that strict liability offenses are constitutional. Exception: The
Supreme Court struck down as a violation of due process a Los Angeles munic-
ipal ordinance imposing strict liability for failure to register as a felon. The key
factor in the court’s decision was the absence of “circumstances which might
move one to inquire as to the necessity of registration.” Note: The scope of this
holding is limited to statutes making criminal the failure to register.
1) Purposely
A person acts purposely with respect to his conduct when it is his
conscious object to engage in certain conduct or cause a certain result,
e.g., burglary.
2) Knowingly
A person acts knowingly with respect to the nature of his conduct when
he is aware that his conduct is of that nature or that certain circumstances
16. CRIMINAL LAW
3) Recklessly
A person acts recklessly when he consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a prohibited result
will follow, and this disregard constitutes a gross deviation from the
standard of care that a reasonable person would exercise in the situation.
An act performed recklessly is also performed wantonly. Recklessness
requires that the actor take an unjustifiable risk and that he know of and
consciously disregard the risk. Mere realization of the risk is not enough. He
must know that injury might result (if he knows that it is certain to result, he
acts knowingly). Thus, recklessness involves both objective (“unjustifiable
risk”) and subjective (“awareness”) elements.
b. Negligence
A person acts negligently when he fails to be aware of a substantial and
unjustifiable risk that circumstances exist or a result will follow, and such failure
constitutes a substantial deviation from the standard of care that a reason-
able person would exercise under the circumstances. To determine whether
a person acted negligently, an objective standard is used. However, it is not
merely the reasonable person standard that is used in torts; the defendant must
have taken a very unreasonable risk in light of the usefulness of his conduct,
his knowledge of the facts, and the nature and extent of the harm that may be
caused.
EXAMPLE
D held himself out to the public as a doctor even though he was not a licensed
physician. He treated a sick woman by wrapping her in kerosene-soaked flan-
nels for three days. The woman died. Held: D is guilty of manslaughter. His
good intentions were irrelevant. By objective standards, he took an unjustifi-
able risk.
EXAMPLE
A, driving in excess of the speed limit, hits and kills B, a pedestrian. A’s
speeding violation may be admissible as evidence of his negligence in a
prosecution for manslaughter.
EXAMPLE
Under a statute imposing criminal liability on anyone who “knowingly
makes a sale of an intoxicating beverage to a minor,” the M.P.C. would
require knowledge for each material element of the offense. Thus, if the
defendant can show that she did not know that a sale took place, that the
beverage was intoxicating, or that the purchaser was a minor, she will be
able to avoid liability.
EXAMPLE
Under a statute creating criminal liability for anyone who “sells
intoxicating beverages to one whom he should know to be a minor,”
the material elements include the act of selling and the attendant
18. CRIMINAL LAW
a. Limitation on Punishment
Because the imposition of criminal liability for faultless conduct is contrary to
the basic premise of criminal justice that crime requires fault on the part of the
accused, at least one state court has held that imprisonment in such cases
violates the due process guarantees of the state constitution. The current trend
in the legislatures is to limit vicarious liability to regulatory crimes and to limit
punishment to fines.
EXAMPLE
A statute makes it a crime “for anyone to serve an alcoholic beverage to a
minor.” Although a bartender may be strictly liable under this statute regardless
of her belief that the customer was legally old enough to drink, this statute
should not be construed to impose liability on the tavern owner who neither
was present at the time the minor was served nor authorized the actions of the
bartender.
9. Transferred Intent
If a defendant intended a harmful result to a particular person or object and, in trying
to carry out that intent, caused a similar harmful result to another person or object,
her intent will be transferred from the intended person or object to the one actually
harmed. Any defenses or mitigating circumstances that the defendant could have
asserted against the intended victim (e.g., self-defense, provocation) will also be
20. CRIMINAL LAW
transferred in most cases. The doctrine of transferred intent most commonly applies
to homicide, battery, and arson. It does not apply to attempt.
EXAMPLE
A shoots at B, intending to kill him. Because of bad aim, she hits C, killing him. Is A
guilty of C’s murder? Held: Yes. Her intent to kill B will be transferred to C. Note that
A may also be guilty of the attempted murder of B.
COMPARE
A shoots twice at B, thinking that B was C, whom she had wanted to kill. She wounds
not only B, but also D, a bystander. Is A guilty of the attempted murder of B and D?
Held: A is guilty of the attempted murder of B, because her mistake as to B’s identity
is a mistake of fact that does not negate her intent to kill the person in front of her
(B). There is no transferred intent issue in that scenario. However, most courts would
hold that she is not guilty of the attempted murder of D.
EXAMPLE
An impoverished woman steals so that her hungry children may eat. Despite her
noble motive—feeding her children—the woman could be held criminally liable for
her acts because her intent was to steal.
EXAMPLE
A decides to kill B. While driving to the store to purchase a gun for this purpose, A negli-
gently runs over B and kills him. Is A guilty of murder? No, because although at the time
A caused B’s death he had the intent to do so, this intent did not prompt the act resulting
in B’s death (i.e., A’s poor driving).
COMPARE
With the intent to kill B, A strangles B to the point of unconsciousness, but does not
actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A guilty of murder,
even though the death-causing act of burying B was done without the intent to murder?
Yes, in a majority of jurisdictions. Most courts would find that the two acts were part of a
single transaction with a common intent.
CRIMINAL LAW 21.
E. CAUSATION
Some crimes (e.g., homicide) require a harmful result and causation. For a full discussion
of causation, see VII.C.5., infra.
A. PARTIES TO A CRIME
1. Common Law
The common law distinguished four types of parties to a felony: principals in the
first degree (persons who actually engage in the act or omission that constitutes the
criminal offense); principals in the second degree (persons who aid, command, or
encourage the principal and are present at the crime); accessories before the fact
(persons who aid, abet, or encourage the principal but are not present at the crime);
and accessories after the fact (persons who assist the principal after the crime).
2. Modern Statutes
Most jurisdictions have abolished the distinctions between principals in the first
degree, principals in the second degree, and accessories before the fact (acces-
sories after the fact are still treated separately). Under the modern approach, all
“parties to the crime” can be found guilty of the criminal offense. For convenience,
this section will designate the actual perpetrator of the criminal act as the principal
and the other parties to the crime as accomplices.
a. Principal
A principal is one who, with the requisite mental state, actually engages in the
act or omission that causes the criminal result. Also, anyone who acts through
an innocent, irresponsible, or unwilling agent is classified as a principal.
EXAMPLE
A gives a poisonous drink to B to give to C. B does so; C drinks it and dies. If B
did not know that the drink was poisonous, or if B was mentally ill or under du-
ress, A, not B, is the principal. Note that the principal need not be present when
the harm results.
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b. Accomplice
An accomplice is one who (1) with the intent to assist the principal and the intent
that the principal commit the crime (2) actually aids, counsels, or encourages the
principal before or during the commission of the crime.
1) Penalty
Typically the punishment for this crime bears no relationship to the principal
offense; five years is the most common maximum sentence. Exemptions are
usually provided for close relatives of the principal offender (the common
law exempted only the spouse).
1. Provision of Material
In the absence of a statute, most courts would hold that mere knowledge that a
crime would result from the aid provided is insufficient for accomplice liability, at
least where the aid involves the sale of ordinary goods at ordinary prices. However,
procuring an illegal item or selling at a higher price because of the buyer’s purpose
may constitute a sufficient “stake in the venture” for a court to find intent to aid.
EXAMPLE
A tells B that he wants to buy a can of gasoline from B to burn a house down. B sells
A the gasoline and A burns down the house. B is not liable as an accomplice to ar-
son (unless it was illegal to sell gasoline in cans or B charged A twice his usual price
because of what A was using the gasoline for).
C. SCOPE OF LIABILITY
An accomplice is responsible for the crimes he did or counseled and for any other crimes
CRIMINAL LAW 23.
committed in the course of committing the crime contemplated, as long as the other
crimes were probable or foreseeable.
EXAMPLE
A commands B to burn C’s house, and B does so. The fire spreads to X’s house, and it
was foreseeable that it would do so. A is an accomplice to the burning of X’s house.
EXAMPLE
At common law, a woman may not be convicted of rape as a principal, but she may
be convicted of that crime as an accomplice.
EXAMPLE
A is charged with transporting B, a woman, in interstate commerce for immoral
purposes; B is charged as an accomplice, on the ground that she encouraged
and assisted A. Is B guilty? Held: No. The statute was intended to protect wom-
en, and thus the woman transported cannot be convicted.
EXAMPLE
A asked B to sell her some heroin. B did so. Both were apprehended. B was
charged as a principal for the sale of narcotics; A was charged as an accom-
24. CRIMINAL LAW
plice. Is A subject to conviction? Held: No. Since the statute prohibiting sale
does not mention the liability of the buyer, the presumed legislative intent is to
exempt her.
c. Withdrawal
One who has rendered encouragement or aid to another may avoid liability as
an accomplice if he voluntarily withdraws from the crime before it is actually
committed by the principal. What is necessary for an effective withdrawal
depends upon what the person initially did.
EXAMPLE
B expresses a desire to kill C. A encourages him to do so, and provides him
with a gun. Later, A changes his mind. He seeks B out, and tells B that his ear-
lier position was wrong and that B should not kill C. He also gets his gun back.
Nevertheless, B obtains another gun and kills C. Is A liable as an accomplice?
Held: No, since he did all that was possible to render his encouragement and
assistance ineffective before B’s plan to kill C became unstoppable.
A. IN GENERAL
The inchoate offenses are solicitation, attempt, and conspiracy. An inchoate offense is
committed prior to and in preparation for what may be a more serious offense. It is a
complete offense in itself, even though the act to be done may not have been completed.
At common law under the doctrine of merger, inchoate offenses were regarded as
misdemeanors; if the principal offense was carried out, they were considered felonies.
The doctrine of merger has been abandoned in many jurisdictions in cases involving a
conspiracy, allowing an accused to be convicted of both conspiracy and the principal
offense. However, an accused cannot be convicted of either attempt or solicitation and
the principal offense.
CRIMINAL LAW 25.
B. SOLICITATION
At common law it was a misdemeanor to solicit another to commit a felony or an act that
would breach the peace or obstruct justice. Modern statutes often retain the crime of
solicitation, but some restrict it to the solicitation of certain serious felonies.
1. Elements
Solicitation consists of inciting, counseling, advising, inducing, urging, or
commanding another to commit a crime with the specific intent that the person
solicited commit the crime (general approval or agreement is insufficient). The
offense is complete at the time the solicitation is made. It is not necessary that the
person solicited agree to commit the crime or do anything in response. (If the person
solicited committed the crime, the solicitor would be liable for the crime as a party;
if the person solicited proceeded far enough to be liable for attempt, the solicitor
would be a party to that attempt.)
2. Attempt Distinguished
Solicitation generally is not an attempt to commit the crime solicited. This distinction
is important in jurisdictions where there is no crime of solicitation or where the crime
of solicitation does not extend to as many offenses as does the crime of attempt.
3. Defenses
C. CONSPIRACY
1. Elements
The elements of conspiracy at common law are as follows:
26. CRIMINAL LAW
Under the traditional definition of conspiracy, the agreement itself was the culpable
act (the actus reus). Today, a majority of states require an overt act in furtherance of
the conspiracy, but mere preparation will usually suffice.
a. Agreement Requirement
The parties must agree to accomplish the same objective by mutual action. The
agreement need not be express. The existence of an agreement may be shown
by a concert of action on the part of the conspirators over a period of time under
circumstances showing that they were aware of the purpose and existence of the
conspiracy and agreed to participate in the common purpose. Where multiple
crimes and multiple parties are involved, there are often problems in deciding
whether there is a single conspiracy or several smaller conspiracies.
2) Multiple Crimes
Where the same parties perform a number of crimes over an extended period
of time, is each individual crime the subject of a separate conspiracy or are all
the crimes to be treated as arising out of one overriding conspiracy? If there
is an initial agreement among the parties to engage in a course of criminal
conduct constituting all the crimes, then there is only one conspiracy.
EXAMPLE
A and B agree to commit one bank robbery each month for one year. Even
though they plan to rob 12 banks, they are guilty of only one conspiracy.
EXAMPLES
1) In a large narcotics ring, a smuggler brings heroin into the country
and sells it to a wholesaler. The wholesaler sells it to numerous retail-
ers. How many conspiracies? One, because this is a “chain” situation.
Because the smuggler-wholesaler agreement and the wholesaler-
retailers agreements were all part of a scheme in which all participants
were interested, there is only one conspiracy.
2) Brown agreed with A, B, and C to help each of them make fraudu-
lent loan applications. Each application was to be an independent
action and the applicants in one situation had no interest in whether
the other fraudulent applications were successful. How many conspira-
cies? Three: Brown with A, Brown with B, and Brown with C. Since the
subagreements were not part of an overall scheme in which A, B, and
C all were interested, this is a “hub-and-spoke” situation. A has not
conspired with B and C, but only with Brown.
c) Wharton-Type Problems
EXAMPLE
A and B agree to meet at dawn to engage in a duel. They are ap-
prehended before daybreak, however. Dueling is a crime in the
CRIMINAL LAW 29.
EXAMPLE
A, a woman, and B, a man, agreed on a scheme in which A would
be transported over state lines for purposes of prostitution. Is B
guilty of criminal conspiracy? No. The act of transporting women
over state lines for immoral purposes violates a statute (the Mann
Act) that was designed to protect women; thus, A could not be
guilty of a violation of the Act and cannot be guilty of conspiracy to
violate the Act. Therefore, B cannot be guilty of criminal conspiracy
because there were not two guilty parties to the agreement.
1) Intent to Agree
It is very difficult to separate the intent to agree from the act of agreement.
Hence, most courts do not even try. For bar exam purposes, the only thing
that is important to remember is that the intent to agree can be inferred
from conduct.
EXAMPLE
A, B, and C agree to steal D’s car, but only A and B intend to keep it perma-
nently; C intends to return it to D. Only A and B are guilty of conspiracy to
commit larceny, because only they had the intent to permanently deprive
D of his car. If only A so intended, and both B and C intended to return the
car, then A could not be liable for conspiracy to commit larceny.
EXAMPLE
A and B agree on a scheme to persuade C, a 12-year-old girl, to have in-
tercourse with one of them. They believe she is 21, but this would not be a
defense to the completed crime of statutory rape. Can they be convicted
of conspiracy to commit statutory rape? No, because conspiracy to com-
mit statutory rape requires knowledge of the victim’s age even though the
completed crime does not.
c. Overt Act
At common law, the conspiracy was complete when the agreement with the requi-
site intent was reached. This is still the law in some states. Most states, however,
require that an act in furtherance of the conspiracy be performed. If an overt act
is required, any act in pursuit of the conspiracy will suffice, even an act of mere
preparation. The act may be performed by any one of the conspirators.
EXAMPLE
A, B, and C agreed to rob a bank. A, unbeknownst to B and C, rents a car to be
used in the getaway. If an overt act is required, the renting of a car is sufficient.
1) Attempt Distinguished
In attempt cases, the law requires that there be a substantial step toward
commission of the crime, whereas the overt act for conspiracy requires only
an act of mere preparation. The reason for this is that the secret activity
in conspiracy cases is potentially more dangerous to society and, since a
group is involved, it is more difficult for one person to stop the activity once
the agreement has been made.
2. Termination of Conspiracy
Since acts or declarations of co-conspirators are admissible only if made in further-
ance of the conspiracy, it becomes critically important to determine when the
conspiracy ends. This is also important for statute of limitations purposes.
a. Acts of Concealment
Since most criminals attempt to conceal the fact that they have committed a
crime, courts have generally taken the view that evidence of overt acts of
concealment is not sufficient to make the act of concealment part of the
conspiracy. In other words, there must be direct evidence that the parties
specifically agreed, prior to commission of the crime, that they would act in a
certain way to conceal the fact that they had committed the crime.
EXAMPLE
Suppose the statute of limitations for tax evasion is six years. If A and B
conspire to commit tax evasion, does their conspiracy end at the time of the
32. CRIMINAL LAW
commission of the fraud, or does it extend for the six years during which time A
and B presumably endeavor to keep their crime a secret? The answer depends
upon whether at the time of the agreement to commit tax evasion there was
also a specific subsidiary agreement to conceal the crime until the statute of
limitations had run. If there was no such specific agreement, as, for example, if A
and B were not aware of the statute of limitations, then the conspiracy does not
extend beyond the completion of the act of evasion.
EXAMPLE
Police stop A, who was transporting illegal drugs in his vehicle. Instead of simply
arresting A, the police instead decide to set up a “sting” operation. They drive
the vehicle to a preset location, and instruct A to contact B, a drug dealer, in
accordance with A and B’s original plan. B tells A that he will call C and D and
have them pick up the vehicle with the drugs. C and D do so. C and D can be
convicted of conspiracy to distribute illegal drugs. The fact that the government
defeated the conspiracy’s objective does not terminate the conspiracy, and im-
possibility is no defense to a charge of conspiracy (see below).
b. The crimes were “a natural and probable consequence” of the conspiracy, i.e.,
foreseeable.
This doctrine applies only if the conspirator has not made a legally effec-
tive withdrawal from the conspiracy before the commission of the crime by the
co-conspirator. (See 4.b., infra.)
4. Defenses
CRIMINAL LAW 33.
EXAMPLE
A and B agree to rape a woman whom they believe is asleep. In fact, she is
dead. A and B may be convicted of conspiracy to rape.
b. Withdrawal Is No Defense
The general rule is that withdrawal from a conspiracy is not a defense to a
charge of conspiracy, because the conspiracy is complete as soon as the agree-
ment is made and an overt act is committed. The M.P.C. recognizes voluntary
withdrawal as a defense if the defendant thwarts the success of the conspiracy
(e.g., by informing the police).
6. State Codifications
While at common law a conspiracy was defined as a combination or agreement
between two or more persons to accomplish some criminal or unlawful purpose,
or to accomplish a lawful purpose by unlawful means, recent state codifications
require that the object of the conspiracy be a specifically proscribed offense. Yet
many states essentially codify the expansive common law notion by making it
a crime to conspire to commit acts injurious to the public welfare. The Supreme
Court has indicated that such statutes are unconstitutionally vague unless
construed narrowly.
34. CRIMINAL LAW
7. Punishment
Because a defendant may be convicted of both conspiracy and the completed crime,
most jurisdictions have enacted express penalty provisions for conspiracies. Some
statutes make conspiracy a misdemeanor regardless of its objective; some provide a
permissible maximum sentence regardless of the objective; and still others provide
different maximums depending upon the objective. Note that because the punish-
ment for conspiracy usually is not expressed as a fraction of the punishment for
the completed crime, the punishment for conspiracy may be more severe than the
punishment for the completed crime.
D. ATTEMPT
A criminal attempt is an act that, although done with the intention of committing a crime,
falls short of completing the crime. An attempt therefore consists of two elements: (1) a
specific intent to commit the crime, and (2) an overt act in furtherance of that intent.
1. Intent
The defendant must have the intent to perform an act and obtain a result that, if
achieved, would constitute a crime.
2. Overt Act
The defendant must have committed an act beyond mere preparation for the
offense. Several tests have been used to determine whether the act requirement for
attempt liability has been satisfied:
act based on how close the defendant came to completing the offense. Under
the typical proximity test, attempt requires an act that is dangerously close to
success.
EXAMPLE
Pointing a loaded gun at an intended victim and pulling the trigger is sufficient
under the proximity test, but going to the store to purchase bullets or even
driving to the intended victim’s house is insufficient. [See People v. Rizzo, 246
N.Y. 334 (1927)]
3. Defenses
a. Impossibility of Success
Factual impossibility traditionally has been distinguished from legal impossibility,
and should be distinguished for exam purposes.
EXAMPLE
Defendant was charged with attempted subornation of perjury for solic-
iting false testimony from a third party witness in a divorce proceeding
brought by Wife on the grounds of adultery. The divorce complaint alleged
one act of adultery. The witness’s testimony, which was never offered at
trial, would have falsely accused Husband of having extramarital relations
on an occasion that was not alleged in the complaint. Because Wife’s
complaint made no mention of this event, the witness’s testimony, had it
been offered at trial, would have been immaterial to the resolution of the
complaint. The materiality of false testimony is an essential element of the
crime of perjury; therefore, if the witness had testified falsely as planned,
Defendant could not have been convicted of subornation of perjury. In
equal measure, then, she cannot be guilty of an attempt to do the same.
[People v. Teal, 196 N.Y. 372 (1909)]
36. CRIMINAL LAW
EXAMPLE
In an attempt to steal A’s wallet, B sticks his hand in A’s back pocket. The
pocket, however, is empty. Can B be convicted of attempted larceny? Yes,
the “emptiness” of A’s back pocket describes its physical condition at
the time B reached his hand in. This factual impossibility is no defense to
liability.
EXAMPLE
An adult police officer, while pretending to be a minor, arranges for
a time and place for a sexual encounter with an adult defendant.
When the defendant shows up for the encounter, he is arrested and
charged with some form of attempted statutory rape crime, even
though the “minor” is in reality an adult. Given that there is no minor
involved, there is no way for the defendant to complete the substan-
tive crime. May the defendant be convicted? The answer is “yes,”
given that the defendant has engaged in conduct that would have
constituted some sort of statutory rape type crime had the defendant
been able to complete the crime and had the circumstances been as
he believed them to be.
CRIMINAL LAW 37.
b. Abandonment
If a defendant has, with the required intent, gone beyond preparation, may she
escape liability by abandoning her plans? The majority rule is that abandonment
is never a defense. The M.P.C. approach, followed in a number of jurisdictions,
is that withdrawal will be a defense but only if:
A. INSANITY
The insanity defense exempts certain defendants because of the existence of an
38. CRIMINAL LAW
abnormal mental condition at the time of the crime. The various formulations differ signifi-
cantly on what effects a mental illness must have had to entitle the defendant to an
acquittal. Note that insanity is a legal term rather than a psychiatric one. Furthermore,
insanity is a generic term comprising many possible mental abnormalities, all of which
have only one thing in common: they are recognized by law as dictating certain legal
consequences. Usually, the cause of a defendant’s mental illness or insanity is irrelevant
in determining the legal consequences.
a. M’Naghten Rule
1) Elements
The traditional M’Naghten rule provides that a defendant is entitled to an
acquittal if the proof establishes that:
c) Such that the defendant lacked the ability at the time of his actions to
either:
2) Application
EXAMPLE
A, because of a mental illness, believed B wanted to kill him. A killed B.
Is A entitled to an acquittal on insanity grounds under the M’Naghten
rule? Held: No. Even if A’s delusion had been accurate, he would not
have been legally entitled to kill B simply because B wanted to kill him.
3) Evidence Admissible
In practice, the M’Naghten rule does not unduly restrict the evidence heard
by juries. Most jurisdictions admit any evidence that reasonably tends to
show the mental condition of the defendant at the time of the crime.
This test combines the M’Naghten and the irresistible impulse tests by allowing
for the impairment of both cognitive and volitional capacity.
2. Exclusion of “Psychopaths”
Many formulations (including the A.L.I. test) expressly exclude the psychopathic
40. CRIMINAL LAW
criminal—the person who repeatedly commits crimes without experiencing guilt. This
is usually accomplished by defining “mental illness” so as to exclude any abnormality
evidenced only by repeated antisocial conduct. “Sociopathic” and “psychopathic”
are synonymous.
a. Burdens of Proof
2) Burden of Persuasion
In most states, the defendant must prove his insanity, generally by a
preponderance of the evidence. In some jurisdictions and under the M.P.C.,
however, once the issue has been raised, the prosecution must prove the
defendant was sane beyond a reasonable doubt. Federal courts require the
defendant to prove insanity by clear and convincing evidence.
The Due Process Clause prevents a defendant from being declared incompe-
tent without notice and a hearing. Many jurisdictions grant a right to a jury deter-
mination of competence. A finding of incompetence will suspend the criminal
proceedings and invariably result in commitment until such time as the defen-
dant regains competence. The Constitution may demand that the defendant’s
hospitalization be limited to a reasonable period of time necessary to decide
whether there is a likelihood of recovery in the near future.
8. Diminished Capacity
Some states recognize the defense of “diminished capacity,” under which the defen-
dant may assert that as a result of a mental defect (e.g., neurosis, obsessive compul-
siveness, or dependent personality) short of insanity, he did not have the particular
mental state (purpose, knowledge, recklessness, or negligence) required for the
crime charged. Most states recognizing this defense limit it to specific intent crimes.
9. Bifurcated Trial
Some states, such as California, employ a two-stage trial process whenever the
defense of insanity is raised. The first stage determines guilt (did the defendant
actually perform the criminal act?); the second stage (which may be tried before a
new jury at the judge’s discretion) determines insanity (was the defendant legally
insane at the time he performed the act?).
B. INTOXICATION
Intoxication may be caused by any substance. Alcohol, drugs, and medicine are the most
frequent. Evidence of intoxication may be raised whenever the intoxication negates the
CRIMINAL LAW 43.
1. Voluntary Intoxication
Intoxication is voluntary (self-induced) if it is the result of the intentional taking
without duress of a substance known to be intoxicating. The person need not have
intended to become intoxicated.
EXAMPLE
After drinking heavily, A breaks into a house, wrongly thinking it is her own.
When surprised by B, the owner, A reacts with force, beating B with her fists.
While driving home, A is cited for speeding. Will A have a defense of intoxica-
tion: (1) to burglary? (Yes, if as a result she did not know that the house belonged
to B or did not have the intent to commit a felony therein); (2) to battery? (No,
because as defined battery may be the result of recklessness); or (3) to speed-
ing? (No, because speeding is a strict liability offense).
2. Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating
substance (1) without knowledge of its nature, (2) under direct duress imposed by
another, or (3) pursuant to medical advice while unaware of the substance’s intoxi-
cating effect.
3. Relationship to Insanity
Intoxication and insanity are two separate defenses. However, continuous, exces-
sive drinking or drug use may bring on actual insanity (e.g., delirium tremens). Thus,
a defendant may be able to claim both an intoxication defense and an insanity
defense.
C. INFANCY
1. Common Law
At common law, the defense of lack of capacity to commit a crime by reason of
infancy gave rise to three presumptions. Physical age (not mental age) at the time
of the crime (not at the time of the trial) governs.
c. Over Fourteen—Adult
Children age 14 or older were treated as adults.
2. Modern Statutes
CRIMINAL LAW 45.
b. Juvenile Delinquency
All states have enacted some type of juvenile delinquency laws or have set up
special juvenile or family courts. These laws ordinarily provide that with respect
to conduct that would be deemed criminal if committed by an adult, the juvenile
court has exclusive jurisdiction over children under a certain age, and concur-
rent jurisdiction (with the criminal courts) over older children. In the “concurrent
jurisdiction” situation, the child must be “charged” with delinquency in juvenile
court unless the juvenile court waives jurisdiction and authorizes the trial of
the child as an adult in criminal court. In most jurisdictions, the common law
immunity rules for infants do not apply in juvenile court because the primary
goal is rehabilitation rather than punishment. The M.P.C. follows this approach,
providing that the juvenile court has exclusive jurisdiction over minors younger
than 16 and concurrent jurisdiction over 16- and 17-year-old minors.
A. JUSTIFICATION
Under certain circumstances, the commission of a proscribed act is viewed by society
as justified and hence not appropriate for criminal punishment. Generally, the defendant
must raise the issue of justifiable use of force by introducing some evidence (“more than
a scintilla”) tending to show justification as an affirmative defense. Once she has done
this, the state may require the prosecution to prove that the use of force was not justified,
or it may impose on the defendant the burden of proving this affirmative defense by a
preponderance of the evidence.
1. Self-Defense
a. Nondeadly Force
As a general rule, an individual who is without fault may use such force as she
reasonably believes is necessary to protect herself from the imminent use
of unlawful force upon herself. (See discussion infra on reasonableness and
unlawful force.) There is no duty to retreat before using nondeadly force, even
if retreat would result in no further harm to either party.
b. Deadly Force
A person may use deadly force in self-defense if she (1) is without fault, (2) is
confronted with unlawful force, and (3) reasonably believes that she is threat-
ened with imminent death or great bodily harm.
46. CRIMINAL LAW
1) Without Fault
A person who has initiated an assault or provoked the other party will be
considered the aggressor. (See discussion infra.)
2) Unlawful Force
The attacker must be using unlawful force (i.e., force that constitutes a
crime or a tort).
EXAMPLE
A, who has his arms tied behind his back, says to D, “I am going to kill you.”
D pulls out a gun and shoots A. No self-defense.
4) Retreat
Must a person retreat as far as possible before using deadly force, if such
retreat is possible without the person endangering himself? For purposes
of the examination, the majority rule is that there is no duty to retreat.
A person (other than the initial aggressor) may use deadly force in self-
defense even if this could be avoided by retreating. Even in the minority of
courts that follow a common law rule and impose a duty to retreat, retreat
is only sometimes necessary. First, no retreat is necessary unless it can be
made in complete safety. Second, no retreat is necessary in several special
situations: (1) where the attack occurs in one’s own home; (2) where the
attack occurs while the victim is making a lawful arrest; or (3) where the
assailant is in the process of robbing the victim.
EXAMPLE
A is standing in a public park feeding the birds. B walks up to A, pulls a
knife from his pocket, and—as he comes closer to A—says, “I am going to
kill you.” A pulls a gun from her pocket and shoots B, killing him. Does A
have a defense of self-defense? Under the majority rule the answer would
be yes, because A had no duty to retreat before using deadly force, as long
as the force was necessary to defend herself against imminent attack. Even
under the minority approach the answer might be yes, because even if A
was under a general duty to retreat before using deadly force, here it did
not appear that such retreat could have been done in complete safety.
CRIMINAL LAW 47.
1) Withdrawal or Retreat
An aggressor who, in good faith, attempts to remove herself from the
fight, and communicates to the other person her desire to remove herself,
regains her right to use force in self-defense.
2) Sudden Escalation
If the victim of the initial aggression suddenly escalates a “minor” fight into
one involving deadly force and does so without giving the aggressor the
chance to withdraw or retreat, the aggressor may use deadly force in her
own defense.
2. Defense of Others
There are two issues in determining whether a person who has used force to defend
another person is criminally liable for her acts.
3. Defense of a Dwelling
a. Nondeadly Force
A person is justified in the use of nondeadly force in defense of her dwelling
when, and to the extent that, she reasonably believes that such conduct is
necessary to prevent or terminate another’s unlawful entry into or attack upon
her dwelling.
48. CRIMINAL LAW
b. Deadly Force
One is generally justified in the use of deadly force in two situations:
2) Felony
Use of deadly force is also justifiable where the person reasonably believes
that such force is necessary to prevent the entry into the dwelling by a
person who intends to commit a felony in the dwelling.
a. Nondeadly Force
Nondeadly force may be used to defend property in one’s possession from
unlawful interference. In the case of real property, this means entry or trespass;
in the case of personal property, this means removal or damage. The person
must reasonably believe that force is needed, and the need to use force must
reasonably appear imminent. Thus, force may not be used if a request to
desist or refrain from the activity would suffice. In addition, the right is limited
to property in one’s possession. Force cannot be used to regain possession of
property that he reasonably believes was wrongfully taken, unless the person
using it is in “immediate pursuit” of the taker.
5. Crime Prevention
a. Nondeadly Force
Generally, one is privileged to use force to the extent that he reasonably
believes is necessary to prevent a felony, riot, or other serious breach of the
peace, although some states (e.g., California) have extended this to the preven-
tion of any crime.
b. Deadly Force
The traditional rule was that deadly force could be used to prevent the commis-
sion of any felony, but the modern view is that deadly force may be used only if
CRIMINAL LAW 49.
a. By Police Officer
The use of deadly force to apprehend a fleeing felon constitutes a seizure. The
force used to effect a seizure must be reasonable. Deadly force is reasonable
only when the felon threatens death or serious bodily harm and deadly force
is necessary to prevent his escape. [Tennessee v. Garner, 471 U.S. 1 (1985)] For
purposes of state criminal law, under this rule a police officer cannot use deadly
force to apprehend an unarmed, nondangerous felon; but an officer may use
deadly force to prevent a felon from escaping if the police officer has probable
cause to believe that the felon poses a threat of serious bodily harm to the
officer or others.
b. By Private Person
A private person has the same right to use force to make an arrest as a police
officer or one acting at the direction of a police officer, except that the private
person has a defense to the use of deadly force only if the person harmed was
actually guilty of the offense (i.e., felony) for which the arrest was made. It is not
enough that it reasonably appeared that the person was guilty. A private person
has a privilege to use nondeadly force to make an arrest if a crime was in fact
committed and the private person has reasonable grounds to believe the
person arrested has in fact committed the crime.
7. Resisting Arrest
8. Necessity
Conduct otherwise criminal is justifiable if the defendant reasonably believed that
the conduct was necessary to avoid some harm to society that would exceed the
harm caused by the conduct. The test is objective; a good faith belief in the neces-
sity of one’s conduct is insufficient. However, causing the death of another person to
protect property is never justified.
EXAMPLE
Throwing cargo overboard during a violent storm, if necessary to save the lives of
the crew and other people on board a ship, would not constitute criminal damage to
property. On the other hand, throwing some members of the crew overboard to save
the cargo would never be justifiable.
9. Public Policy
A police officer (or one assisting her) is justified in using reasonable force against
another, or taking property, provided the officer acts pursuant to a law, court order,
or process requiring or authorizing her to so act.
EXAMPLE
The public executioner is not guilty of murder when she carries out a lawfully im-
posed sentence of execution. If the sentence was not lawful, the executioner is still
immunized from criminal liability by a reasonable belief that her conduct was re-
quired by law.
Traditionally, threats to property were not sufficient; however, a number of states, consis-
tent with the M.P.C., do allow for threats to property to give rise to a duress defense,
assuming that the value of the property outweighs the harm done to society by commis-
sion of the crime. Note that an act committed under duress is termed excusable rather
than justifiable. The subtle distinction stems from the fact that criminal acts performed
under duress are condoned by society rather than encouraged.
1. Necessity Distinguished
Unlike necessity, duress always involves a human threat.
EXAMPLE
A points a gun at B and threatens to kill B if she does not break into C’s house and
steal food. B does as she is told. B may raise the defense of duress. If, however, B is
a starving victim of a plane crash in a desolate area and commits the same act, she
has the defense of necessity.
C. OTHER DEFENSES
1. Mistake or Ignorance of Fact
EXAMPLE
A, hunting in the woods, shoots at what he reasonably believes to be a deer. In
fact, it is B, who is killed. A’s mistake of fact establishes that he did not have the
state of mind required for murder.
COMPARE
A, hunting in the woods, shoots through the trees at a figure he believes to be
his enemy B, intending to kill him. In fact, the figure is C, who is killed. A is guilty
of murdering C despite his mistake of fact as to C’s identity, because A’s mistake
does not negate his intent to kill a person.
EXAMPLE
A, leaving a restaurant, takes an umbrella, believing that it was the one she
had left there a week ago. In fact, it belongs to B. Is A guilty of larceny?
Held: No; since A believed the umbrella was hers, she could not have
intended to deprive B of his right to it. Therefore, she lacked the state of
mind necessary for larceny. Since her mistake negates a specific intent, it is
not material whether it was a reasonable mistake or not.
EXAMPLES
1) A is charged with violating a statute prohibiting the sale of a pistol to one
known to be a convicted felon. A was unaware of the statute prohibiting this,
but was aware that the person to whom the pistol was sold had been convicted
of assault. A mistakenly believed, however, that assault was a misdemeanor; in
fact, it was a felony. Is A guilty? Held: No. A’s ignorance of the statute prohibiting
the sale does not affect her liability, but the statute requires awareness that the
buyer was a convicted felon. Since A believed the buyer to be only a convicted
misdemeanant, she lacked the state of mind required for the crime.
2) B, who has had her car repossessed by a loan company, honestly believes she
is still the lawful owner of the vehicle and is lawfully entitled to possession of it.
She sees it sitting in a parking space in front of the loan company office and takes
CRIMINAL LAW 53.
it. Even if B is wrong about her right to take the automobile, she is not guilty of
larceny because she lacks the requisite intent to deprive another of his property.
c. Exceptions
3. Consent
EXAMPLES
1) Showing that the victim consented to intercourse is a defense to a charge of
forcible rape.
2) Showing that an adult person consented to traveling with the defendant is a
defense to kidnapping.
54. CRIMINAL LAW
For some crimes, the consent of the victim is of no relevance (e.g., consent of a
victim of statutory rape has no legal significance). For other offenses, consent
may be of limited effect (e.g., within limits, victim may consent to infliction of
physical violence, and one inflicting it will therefore not be guilty of assault or
battery).
EXAMPLE
Forgiveness by an assault victim would not bar a criminal prosecution of the perpe-
trator.
COMPARE
Some statutes provide that marriage of the parties will bar a prosecution for seduc-
tion.
EXAMPLE
A, knowing that B has amassed a fortune through illegal gambling, defrauds B in
a real estate deal. Does B’s unlawful gambling activity provide A with a defense to
fraud? No.
6. Entrapment
Entrapment occurs if the intent to commit the crime originated not with the defen-
dant, but rather with the creative activities of law enforcement officers. If this is the
case, it is presumed that the legislature did not intend to cover the conduct and so it
is not criminal. The defense of entrapment consists of two elements:
(i) The criminal design must have originated with law enforcement officers; and
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(ii) The defendant must not have been predisposed to commit the crime prior to
the initial contact by the government.
If the defendant offers credible evidence on these two elements, in most jurisdic-
tions the government must then show predisposition beyond a reasonable doubt.
EXAMPLE
A, an undercover police agent, poses as a narcotics addict in need of a fix. B
sells narcotics to A. Does B have the defense of entrapment? No. By posing
as an addict, A merely provided an opportunity for B to commit the criminal
sale.
test based entirely on the nature of the police activity. Under this test, a defen-
dant would be entitled to acquittal if the police activity was reasonably likely to
cause an innocent (i.e., unpredisposed) person to commit the crime. The defen-
dant’s innocence or predisposition is irrelevant. Under this approach, the issue
is decided by the judge rather than the jury.
c. Aggravated Battery
Most statutes define certain acts as aggravated batteries and punish them as
felonies. Among the most common are batteries in which:
d. Consent as a Defense
Contrary to the general rule that consent of the victim is not a valid defense,
some jurisdictions recognize consent as a defense to simple battery and/or
certain specified batteries, e.g., a medical operation, or reasonable injuries
incurred in consensual athletic contests.
2. Assault
In a majority of jurisdictions, an assault is either:
EXAMPLE
A points an unloaded gun at B. A pulls the trigger, thereby frightening B. Is A
guilty of assault under a statute defining assault as “an attempt to commit a
battery, coupled with the present ability to succeed”? No. Because the gun was
unloaded, A could not have succeeded in committing a battery.
b. Battery Distinguished
If there has been an actual touching of the victim, a battery has been
committed. If there has been no such touching, the act may or may not consti-
tute an assault, depending on the circumstances.
c. Aggravated Assault
All jurisdictions treat certain “aggravated assaults” more severely than simple
assault. Such aggravated assaults include, but are not limited to, assaults:
d. Terminology
Some modern statutes eliminate the term “battery” and define assault to include
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a battery. Thus, in some states, the term “assault” may encompass a battery, an
attempted battery, and the intentional creation of a reasonable apprehension of
imminent bodily harm.
B. MAYHEM
1. Common Law
At common law, the felony of mayhem required either dismemberment (the removal
of some bodily part) or disablement of a bodily part. The crime was enforced to
preserve the King’s right to his subjects’ military service.
2. Modern Statutes
Most states retain the crime of mayhem in some form, although the recent trend is to
abolish mayhem as a separate offense and to treat it instead as a form of aggravated
battery. Modern statutes have expanded the scope of mayhem to include permanent
disfigurement. A few states require a specific intent to maim or disfigure.
C. HOMICIDE
1. Classifications of Homicides
At common law, homicides were divided into three classifications:
b. Excusable homicides (those for which there was a defense to criminal liability);
and
c. Criminal homicides.
a. Murder
Murder is the unlawful killing of another human being with malice afore-
thought. Malice aforethought may be express or implied.
1) Malice Aforethought
In the absence of facts excusing the homicide or reducing it to voluntary
manslaughter, malice aforethought exists if the defendant has any of the
following states of mind:
EXAMPLE
The following persons may be held guilty of murder under the deadly
weapon rule: (1) one who intentionally pilots a speedboat through a group
of bathers; (2) one who fires a bullet into a crowded room; and (3) a profes-
sional boxer who beats up and kills a belligerent tavern owner.
b. Voluntary Manslaughter
Voluntary manslaughter is a killing that would otherwise be murder but is distin-
guishable from murder by the existence of adequate provocation—i.e., a killing
in the heat of passion.
a) The provocation must have been one that would arouse sudden and
intense passion in the mind of an ordinary person such as to cause
him to lose his self-control;
c) There must not have been a sufficient time between the provocation
and the killing for the passions of a reasonable person to cool. (This
is a factual question that depends upon the nature of the provocation
and the attendant circumstances, including any earlier altercations
between the defendant and the victim); and
d) The defendant in fact did not cool off between the provocation and
the killing.
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4) Imperfect Self-Defense
Some states recognize an “imperfect self-defense” doctrine under which a
murder may be reduced to manslaughter even though:
c. Involuntary Manslaughter
Involuntary manslaughter is of two types.
a) “Misdemeanor-Manslaughter” Rule
A killing in the course of the commission of a misdemeanor is
manslaughter, although most courts would require either that the
misdemeanor be malum in se (i.e., an inherently wrongful act), or if
malum prohibitum, that the death be the foreseeable or natural conse-
quence of the unlawful conduct.
that the felony be inherently dangerous to human life or that the felony be
dangerous to human life as committed.
c. Others
Some statutes make killings performed in certain ways first degree murder.
Thus, killing by lying in wait, poison, or torture may be first degree murder.
c. Limitations on Liability
There are some limitations on liability under the broad felony murder doctrine.
3) Foreseeability of Death
The majority rule is that death must have been a foreseeable result of the
commission of the felony. However, it is important to note that courts have
been willing to find most deaths foreseeable. A minority of courts do not
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EXAMPLE
A intentionally sets fire to a dwelling. B, a firefighter, dies in an effort to
extinguish the blaze. C, the owner of the dwelling, dies of a heart attack
while watching his largest possession being destroyed. Is A guilty of felony
murder? Of B, yes. The death of a firefighter is a foreseeable consequence
of setting a fire. Of C, no. The heart attack was unforeseeable.
EXAMPLE
K is driving on a good road in excellent weather, but is slightly exceeding the
posted speed limit. V dashes from behind a bush into the street and is struck by
K’s car. V dies. Is K guilty of involuntary manslaughter, assuming that speeding
is a misdemeanor? The best answer is no, because the misdemeanor was not
malum in se and death was not a foreseeable result of its commission.
5. Causation
1) Cause-in-Fact
The defendant’s conduct must be the cause-in-fact of the result; i.e., the
result would not have occurred “but for” the defendant’s conduct.
3) “Proximate” Causation
Problems of proximate causation arise only when the victim’s death occurs
because of the defendant’s acts, but in a manner not intended or antici-
pated by the defendant. The question in such cases is whether the differ-
ence in the way death was intended or anticipated and the way in which it
actually occurred breaks the chain of “proximate cause” causation.
b. Rules of Causation
EXAMPLE
A terminates the life support system of B, resulting in B’s death. B had only
24 hours to live. Can A be held liable for B’s death? Yes. Note that society
may not wish to condemn such an “act of mercy.” Nevertheless, for purpos-
es of causation analysis, A’s act caused B’s death.
2) Simultaneous Acts
Simultaneous acts by two or more persons may be considered indepen-
dently sufficient causes of a single result.
3) Preexisting Condition
A victim’s preexisting condition that makes him more susceptible to death
does not break the chain of causation; i.e., the defendant “takes the victim
as he finds him.”
EXAMPLE
A, with malice aforethought, shoots B in the leg. B bleeds to death before
he can receive medical attention because he is a hemophiliac. A is liable
for murder despite the fact that a person without hemophilia would not
have died from the shooting.
c. Intervening Acts
As a general rule, an intervening act will shield the defendant from liability if the
act is a mere coincidence or is outside the foreseeable sphere of risk created by
the defendant’s act.
EXAMPLES
1) Act of Nature: A is driving negligently. To avoid A’s swerving car, B takes an
unaccustomed route home. B’s car is struck by lightning, and B dies. Can A be
charged with manslaughter? No. The fact that lightning struck B was a mere
coincidence.
2) Act by Third Party: A, intending to kill B, merely wounds him. B receives neg-
ligent medical treatment at a nearby hospital. B dies. Can A be held liable for
B’s death? Yes. Despite improvements in medical care, negligent care remains
a foreseeable risk. A contrary result would follow if B died due to gross negli-
gence or intentional mistreatment.
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7. Summary—Analytical Approach
In analyzing any homicide situation, the following questions must be asked and
answered:
a. Did the defendant have any of the states of mind sufficient to constitute malice
aforethought?
b. If the answer to a. is yes, is there proof of anything that will, under any appli-
cable statute, raise the homicide to first degree murder?
d. If the answer to a. is no, is there a sufficient basis for holding the crime to
be involuntary manslaughter, i.e., criminal negligence or misdemeanor
manslaughter?
e. Is there adequate causation between the defendant’s acts and the victim’s
death? Was the defendant’s act the factual cause of death? Is there anything to
break the chain of proximate causation between the defendant’s act and the
victim’s death?
EXAMPLE
A came upon B, who was letting the air out of a tire on A’s car. When A shouted
at B, B picked up a rock and threw it at A, shouting obscenities. B ran off, but
A went to his car, pulled a gun out, and shot at B, hitting him in the leg. B was
taken to a hospital where he underwent surgery; the wrong gas was used as an
anesthetic, and B died. Generally, wounds of this sort are not deadly. A testifies
under oath that he merely intended to wound B as revenge for causing A the
inconvenience of the flat tire. What is A’s liability?
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i. Even if A intended only to wound B with a bullet, this is intent to inflict great
bodily injury and is sufficient for malice aforethought.
ii. If the statute makes premeditated killings first degree murder, A almost certainly
did not premeditate.
iii. While B’s shouted obscenities might not be adequate provocation, a jury could
certainly find that throwing the rock was such provocation.
iv. If the answer to inquiry a. had been no, A’s actions would have constituted
criminal negligence.
v. There is causation. But for A’s shot, B would not have died. Negligent medical
care is not a superseding intervening factor that will break the chain of proxi-
mate causation, unless it is “gross” negligence or intentional malpractice.
D. FALSE IMPRISONMENT
The common law misdemeanor of false imprisonment consisted of:
(i) Unlawful
1. Confinement
Confinement requires that the victim be compelled either to go where he does not
wish to go or to remain where he does not wish to remain. It is not confinement to
simply prevent a person from going where he desires to go, as long as alternative
routes are available to him. The confinement may be accomplished by actual force,
by threats, or by a show of force. The M.P.C. takes a similar approach in that the
confinement must “interfere substantially” with the victim’s liberty.
2. “Unlawfulness”
Confinement is unlawful unless it is specifically authorized by law or by the consent
of the person.
3. Lack of Consent
Consent to the confinement precludes it from constituting false imprisonment, but
the consent must be freely given by one with capacity to give such consent. Thus,
consent is invalidated by coercion, threats, deception, or incapacity due to mental
illness, substantial cognitive impairment, or youth.
E. KIDNAPPING
At common law, the misdemeanor of kidnapping was the forcible abduction or stealing
68. CRIMINAL LAW
away of a person from his own country and sending him into another. Modern statutes
and the M.P.C. generally expand the definition of kidnapping far beyond the common law
definition, although it usually remains a form of aggravated false imprisonment.
1. General Pattern
Kidnapping is often defined as confinement of a person that involves either:
2. Aggravated Kidnapping
Modern statutes often contain as a separate offense an aggravated kidnapping
crime. Among the more common forms of this offense are:
d. Child Stealing
Leading, taking, enticing, or detaining a child with the intent to keep or conceal
the child from a guardian or parent is often defined as aggravated kidnap-
ping. Use of “enticement” covers the situation in which a child is persuaded by
promises or rewards to come with the defendant or remain. The consent of a
child to his detention or movement is not of importance, because the child is
incapacitated by age from giving valid consent.
3. Required Movement
Although at common law extreme movement was required, most modern statutes
require only some movement of the person; if such movement occurs, the extent of
the movement is not material. Other statutes require no movement, making confine-
ment (as used in false imprisonment) sufficient.
4. Secrecy
Generally, it is not necessary that kidnapping involve secrecy. Some statutes,
however, require secrecy when the kidnapping is based on confinement rather than
movement of the victim.
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5. Consent
As with false imprisonment, free consent given by a person competent to give it
precludes the confinement or movement of a person from being kidnapping. But a
person may be incompetent to give such consent by reason of age (see above) or
mental condition.
A. RAPE
Traditionally, rape (a felony) was the unlawful carnal knowledge of a woman by a man,
not her husband, without her effective consent. Today, a number of states have renamed
“rape” as “sexual assault” and have made such statutes gender neutral.
1. Penetration Sufficient
Rape requires only the penetration of the female sex organ by the male sex organ.
Emission is not necessary to complete the crime.
EXAMPLE
D persuaded V that what was actually an act of intercourse was medical
treatment accomplished by surgical instruments. Was D guilty of rape? Yes.
EXAMPLE
D arranges for X to pretend to marry D and V. In fact, X has no authority to
marry persons and there is no marriage. After the sham marriage, D has
intercourse with V. Is D guilty of rape? The best answer is no because there
was consent.
3) Other Fraud
Other kinds of fraud will not make the intercourse rape.
EXAMPLE
D promises to marry V at a later time and thereby induces V to consent to
intercourse. D never intended to marry V. Is D guilty of rape? No. (But D
may be guilty of seduction (see F., infra).)
B. STATUTORY RAPE
1. Victim Below Age of Consent
Statutory rape is the crime of carnal knowledge of a person under the age of
consent. Even if the victim willingly participated, the offense is nevertheless
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committed because consent is irrelevant. The age of consent varies from state to
state, generally from 16 to 18.
2. Mistake as to Age
Will a defendant’s reasonable mistake as to the victim’s age prevent liability for statu-
tory rape? For purposes of the examination, the best answer is no, since statutory
rape is a strict liability crime. A second best answer, to be used only if no alterna-
tive making use of the best position is presented, is that a reasonable mistake as to
age will prevent conviction if the defendant reasonably believed the victim was old
enough to give an effective consent.
1. Adultery
Under modern statutes, any person who cohabits or has sexual intercourse with
another not his spouse commits the misdemeanor offense of adultery if:
b. The person is married and the other person involved in such intercourse is not
his spouse; or
c. The person is not married and knows the other person in such intercourse is
married.
2. Fornication
Fornication is sexual intercourse between or open and notorious cohabitation by
unmarried persons.
E. INCEST
Incest is a statutory offense, usually a felony, that consists of either marriage or a sexual
act (intercourse or deviate sexual conduct) between persons who are too closely related.
72. CRIMINAL LAW
1. Degree of Relationship
No uniformity exists among the states. A majority restricts the crime to blood
relations, although a significant number of states include some nonblood relatives.
2. Degree of Responsibility
Some states make a distinction in penalties depending on the parties involved.
In many states, subsequent marriage of the parties is a defense, but there is no unifor-
mity as to whether the marriage must be entered into before indictment, after sentence,
or anywhere in between.
G. BIGAMY
Bigamy is a traditional strict liability offense that consists of marrying someone while
having another living spouse. At common law, a defendant is guilty of bigamy even if she
reasonably believes that a purported divorce is valid or that her spouse is dead.
A. LARCENY
Larceny was the basic common law property offense. It has been significantly modified
by statute in many American jurisdictions. Larceny consists of:
(iv) Of another;
CRIMINAL LAW 73.
(v) By trespass;
(vi) With intent to permanently (or for an unreasonable time) deprive the person of his
interest in the property.
EXAMPLE
A went onto land owned by B and cut down 15 trees. She loaded 10 into her
truck and drove off. B came onto the land, found the remaining five trees, and
placed them in his shed. A returned and took them. Is A guilty of larceny of 15,
10, five, or no trees? Held: A is guilty of larceny of the five trees that came into
B’s possession after their severance from the realty.
b. Services
Traditionally, obtaining services wrongfully cannot give rise to larceny.
c. Intangibles
Intangibles cannot give rise to larceny.
EXAMPLE
A wrongfully obtains entrance to B’s theater and observes a performance of a
play. Has A committed larceny of that performance? Held: No. The right or ability
to observe a play is intangible.
Note that gas and electricity are considered to be personal property that may
be stolen.
EXAMPLE
A takes a deed to certain realty and a contract for the sale of cattle from B’s
desk. Is A guilty of larceny? Held: No. The deed “merged” with the realty and
the contract merged with the intangible contract right; thus, there was no lar-
ceny.
EXAMPLE
A, while in a store, asks B, the clerk, if she may take a certain suit of cloth-
ing home on approval. B consents. A then asks to see a watch to examine
it; B gives it to her. A then absconds with both items. Have either of them
been taken from B’s possession? Held: The watch was taken from B’s
possession, because A had only the authority to look at it. The suit, on the
other hand, was in A’s possession at the time it was misappropriated, be-
cause of the extent of control B had given A over it.
2) Employees
Low level employees generally have only custody of their employers’
property. They have possession, however, if the employer gives them
especially broad powers over it or if the property is given directly to them
by a third person, without the employer having intermediate possession.
CRIMINAL LAW 75.
EXAMPLE
A owns two cars but only uses one of them. She decides, therefore, to lease
the unused car to B for one year. Six months into the one year lease, A decides
she wants the car back. When B refuses to rescind the lease, A sneaks into B’s
driveway and drives the car away, using her extra key. A is guilty of larceny even
though she is the owner of the car, since B had lawful possession of the vehicle
when A took it.
c. Stolen Property
Stolen property can be the subject of larceny (i.e., a second thief is guilty of
larceny when he takes property from a first thief).
d. Joint Property
At common law, larceny could not be committed by the taking of jointly held
property by one of the joint owners.
3. Taking
It is essential that the defendant actually obtain control of the property.
EXAMPLE
D knocked a glass from X’s hand. It fell and broke. Is D guilty of larceny? No.
Although X may have lost possession, D never obtained control. The damage to
the item is irrelevant.
EXAMPLE
D, pointing out a cow in a nearby field, offers to sell it to X for $10. X gives D
the money and then takes the cow. In fact, the cow belonged to Y. Is D guilty of
larceny of the cow? Yes. She obtained control of it by virtue of X, an innocent
agent of hers.
4. Asportation
Larceny requires asportation, i.e., that all parts or portions of the property be moved
and that this movement—which need only be slight—be part of the carrying away
process.
EXAMPLE
A came upon two upside-down wheelbarrows in B’s yard. She turned them both
right side up, and moved one six inches toward the gate. Was she guilty of larceny
of one, two, or no wheelbarrows? Held: Guilty of larceny of one. Merely turning the
wheelbarrows over is not part of the carrying away movement; thus, it is not asporta-
tion. But merely moving the other wheelbarrow a short distance is enough, because
that movement is part of carrying it away.
the intent to permanently deprive the person from whom the property is taken of
his interest in the property. The intent has to exist at the moment of the taking of the
property.
a. Sufficient Intent
b. Insufficient Intent
1) Intent to Borrow
If the defendant intends to return the property within a reasonable time
and at the time of the taking has a substantial ability to do so, the unauthor-
ized borrowing does not constitute larceny. Note that many states make it
a crime to borrow a motor vehicle, even when the borrower fully intends to
return it (“joyriding”).
c. Possibly Sufficient
1) The finder must know or have reason to believe she can find out the
identity of the owner; and
2) The finder must, at the moment she takes possession of the lost property,
have the intent necessary for larceny.
If the finder takes custody of the lost property without the intent to steal,
but later formulates this intent, she has not committed larceny. Nor has she
committed embezzlement, since no trust relationship between the finder and
the owner has been created. (See below.)
b. Misdelivered Property
One to whom property is delivered by mistake may, by accepting the property,
commit larceny of it. Two requirements must be met:
1) The recipient must, at the time of the misdelivery, realize the mistake that
is being made; and
2) The recipient must, at the time she accepts the delivery, have the intent
required for larceny.
c. “Container” Situations
whether or not the parties intended the original transfer to be the transfer
of a container, i.e., an item containing other items. If the parties intended
to transfer a container, the recipient is regarded as taking immediate
possession of both the container and its contents. Her later misappropria-
tion of the contents is not larceny, because it occurs at a time when she
already has possession. If, however, both parties did not intend to transfer a
container but rather regarded the items transferred as empty (or otherwise
not involving a transfer of contained items), the recipient does not obtain
possession of the contents until she discovers them. If at the time she
discovers and appropriates them she has the intent to steal, she is guilty of
larceny.
EXAMPLE
A took X’s umbrella from X’s possession without X’s permission, intending to
use the umbrella and return it the next day. The next morning when A awoke,
she examined the umbrella carefully and decided to keep it. Is A guilty of lar-
ceny of the umbrella? Yes. The larceny took place when A formed the intent to
steal it. Since her initial possession was wrongful, the trespass continued until
she formed the intent to steal. On the other hand, if A had taken X’s umbrella by
mistake, and later decided to keep it after discovering her mistake, the doctrine
would not apply because her initial taking was done with an innocent state of
mind.
B. EMBEZZLEMENT
Embezzlement was not originally a common law crime. Intended to plug the gaps in the
law of larceny, it was made a misdemeanor by statute in 1799 and is regarded as part of
American common law. Modern statutes often distinguish between grand embezzlement
(a felony) and petit embezzlement (a misdemeanor) based upon the value of the property
embezzled. Although variously defined in different jurisdictions, embezzlement generally
requires:
(ii) Conversion;
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(iii) Of property;
(iv) Of another;
EXAMPLE
A was foreman of a construction crew. One day, he took a tool used by the crew
to his home. The next day, he was fired. On his way out, he took another tool.
Was he guilty of embezzlement of one, two, or no tools? Held: Only of the first
tool, which he converted while it was in his lawful possession by virtue of his
employment. He had no right to possession of the tools at the time he took the
second.
b. Manner of Misappropriation
Larceny requires caption and asportation with the intent to permanently deprive.
Embezzlement requires intentional conversion. (See below.)
2. Conversion
The conversion required by embezzlement requires only that the defendant deal
with the property in a manner inconsistent with the trust arrangement pursuant to
which he holds it. No movement or carrying away of the property is required. The
conversion need not result in direct personal gain to the defendant.
EXAMPLE
A trustee who siphons off trust fund money in order to donate to a favorite charity is
as guilty of embezzlement as the trustee who uses the converted funds to pay his
overdue gambling debts.
3. Property
Embezzlement statutes are often worded in terms of “property that may be subject
to larceny”; i.e., real property and services may not be embezzled. Some relatively
expansive statutes, however, make embezzlement of real property a crime.
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EXAMPLE
A, an agent with apparent authority to sell B’s real estate, fraudulently transfers the
title to a bona fide purchaser. Is A guilty of embezzlement? No, under the traditional
embezzlement statute. Yes, under the more expansive statute.
5. Fraudulent Intent
A defendant must intend to defraud for a conversion to become embezzlement. This
appears to be the functional equivalent of larceny’s specific intent to permanently
deprive.
a. Intent to Restore
If the defendant intended to restore the exact property taken, it is not embez-
zlement. But if he intended to restore similar or substantially identical
property, it is embezzlement, even if it was money that was initially taken and
other money—of identical value—that he intended to return.
b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to
a claim of right to the property, as where it is retained for payment of a debt
honestly believed to be owed. The fact that the defendant retained the property
openly tends to establish a claim of right.
C. FALSE PRETENSES
The offense of false pretenses was created by English statute in 1757, and consequently
is part of the common law in those American states that use 1776 as the determining
date. Like larceny and embezzlement, most jurisdictions distinguish grand false pretenses
(a felony) from petit false pretenses (a misdemeanor). The offense of false pretenses
generally consists of:
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(iii) By a knowing (or, in some states, an intentional) false statement of past or existing
fact;
EXAMPLE
D asked X if X would sell a car and offered as payment what was purported to be
a demand note signed by Y. D falsely represented that the note was one executed
by Y; in fact, D himself had forged it. X agreed to sell the car but told D that the sale
would not be final until she had collected the amount of the note from Y. X then per-
mitted D to use the car until Y could be located. D drove off in the car. Has he com-
mitted larceny or false pretenses? Larceny, because X did not intend to transfer title
to D. X intended only to transfer possession pending collection on the note.
COMPARE
Same facts as above, except the note purportedly signed by Y is due in 30 days
rather than on demand. Based on Y’s good credit, X agreed to convey full title to the
car in exchange for the note. D drove off in the car. D has committed false pretenses
rather than larceny.
2. Misrepresentation Required
There are several limits upon the misrepresentations required for false pretenses.
(These also apply to larceny by trick.)
present fact, and false promises to do something in the future, even without the
present intent to perform, were not sufficient. However, under the M.P.C. and the
modern prevailing view, any false representation suffices for the crime of false
pretenses, including a false promise to perform in the future.
EXAMPLE
A obtained money from B by representing that he was securing it by a first mortgage
on certain property. He intended to pay back the loan. The mortgage actually given
was, as A knew, only a second mortgage. Is A guilty of false pretenses? Held: Yes.
He knowingly subjected B to a substantially greater risk of loss of the money than B
was aware of. This was a sufficient intent to defraud.
5. Related Crimes
Many states have enacted specific legislation covering certain conduct that resem-
bles the crime of false pretenses but is sufficiently different to warrant separate
consideration.
D. ROBBERY
Robbery, a felony in all jurisdictions, consists of the following:
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(i) A taking;
Thus, robbery is basically an aggravated form of larceny in which the taking is accom-
plished by force or threats of force.
EXAMPLE
A reached into B’s pocket without B’s knowledge and removed B’s wallet. B felt the
wallet slip out, turned around, and grabbed A as he moved away. A struck B, render-
ing her unconscious, and ran. Is A guilty of robbery? Held: Yes. The force was used
to prevent the victim from immediately apprehending A and regaining the property.
Thus, it is sufficiently related to the taking.
4. Aggravated Robbery
Statutes often create a form of aggravated robbery, usually defined as robbery
accomplished with a deadly weapon.
E. EXTORTION
Extortion is an offense that generally has been expanded by modern statutes far beyond
its initial common law definition.
CRIMINAL LAW 85.
2. Modern Definition—Blackmail
In many modern statutes, extortion (or blackmail) is defined as obtaining property
from another by means of certain oral or written threats. The prohibited threats often
include threats to do physical harm to the victim or others, or threats to damage the
victim’s property. Under some statutes, the crime is completed when the threats
are made with the intent to obtain money or something of value; the threat is the
essence of the offense. Under other statutes, the money or property must actually
be obtained by means of the threats.
(v) With the intent to permanently deprive the owner of his interest in the property.
1. Possession
Manual possession of the property, while sufficient for “receiving,” is not neces-
sary. It is also receiving if: (1) the thief places the stolen property in a place that the
defendant has designated; or (2) for profit, the defendant arranges for a sale of the
property by the thief to a third person.
2. “Stolen” Property
Most jurisdictions define “stolen” property broadly to include property obtained
by commission of any of the property offenses. However, the property must have
86. CRIMINAL LAW
“stolen” status at the time it is received by the defendant. Thus, if stolen goods have
been recovered by the police and are used in an undercover operation with the
owner’s permission, the goods are not stolen and the defendant cannot be guilty
of receipt of stolen property; however, the defendant may be guilty of attempt to
receive stolen goods (see IV.D.3.a.2)a), supra).
H. FORGERY
At common law, forgery and uttering a forged instrument are separate offenses.
1. Forgery
Forgery consists of the following:
a. Making or altering;
b. Of a false writing;
a. Offering as genuine;
CRIMINAL LAW 87.
EXAMPLE
A drafts and signs what purports to be a letter of introduction from a local physician
and a letter of recommendation from a firm represented as a former employer. Both
are false. Has A committed one, two, or no forgeries? Held: One forgery. The recom-
mendation has apparent legal significance, because one who recommends another
may incur legal liability if his recommendation is false. Thus, it can be the subject of
forgery. But the letter of introduction has only social significance, and cannot be the
subject of forgery.
Writings that derive their value from the mere fact of their existence—historical or
artistic value—cannot be the subject of forgery.
EXAMPLE
A painted a picture and signed it “Rembrandt.” She then sold it to X, representing it
as an original “Rembrandt.” Is A guilty of forgery? No, because the picture and sig-
nature derive their value from the fact of their existence. (Note: A did commit false
pretenses by the sale.)
EXAMPLES
1) A, in charge of a warehouse, issues a warehouse receipt that represents that
the warehouse has received certain grain. It has not. Is this forgery? Held: No. The
warehouse receipt contains a misrepresentation. But it is what it purports to be, i.e.,
a warehouse receipt issued by one with authority to issue it.
2) B obtains blank receipts from A’s warehouse, fills them in so they represent that
certain grain has been received, and signs A’s name. Is this forgery? Held: Yes. The
instruments purport to be what they are not, i.e., warehouse receipts issued by one
with authority to do so.
88. CRIMINAL LAW
5. Required “Making”
I. MALICIOUS MISCHIEF
The common law misdemeanor of malicious mischief consists of:
(i) Malicious;
1. Damage Required
Destruction of the property is not required for malicious mischief. All that is neces-
sary is that some physical damage be done that impairs the utility of the property or
materially diminishes its value.
A. BURGLARY
At common law, the elements of burglary are:
(i) A breaking;
CRIMINAL LAW 89.
(iv) Of another;
(v) At nighttime;
1. Breaking Required
EXAMPLE
D, intending to steal a valuable painting inside V’s house, approaches V’s door.
The door is open about six inches. D pushes it fully open and enters. Is D guilty
of burglary? The best answer is yes, since force—although only minor force—
was used to gain entry.
b. Constructive Breaking
Constructive breaking consists of gaining entry by means of fraud, threat, or
intimidation, or by use of the chimney.
EXAMPLE
P wants to get into V’s apartment to commit a felonious assault on V, but V’s
door is securely locked. P knocks and when V asks who it is, P responds, “I am
a friend of your brother and he asked me to deliver this message to you.” V
then unlocks the door and invites P in. P enters. P has never met V’s brother. Is
P guilty of burglary? Yes. Since entry was obtained by fraud, this is constructive
breaking.
2. Entry Required
Entry is made by placing any portion of the body inside the structure, even momen-
tarily. Insertion of a tool or inanimate object into the structure is entry if it is inserted
for the purpose of accomplishing the felony. It is not sufficient if it is inserted for
purposes of gaining entry.
EXAMPLES
1) A approached B’s dwelling and shot a bullet through his window, intending to kill
B. Has A committed burglary? Held: Yes. He has inserted an inanimate object into
the dwelling by breaking for the purpose of committing the felony.
2) Z intends to go into V’s house and steal valuable jewels from a safe. He care-
fully cuts out a small portion of glass from a window and reaches in with his hand to
unlock the window. At that point he is apprehended. Is Z guilty of burglary? Yes. His
hand had “entered” the dwelling.
5. Requirement of Nighttime
Burglary could be committed only during the nighttime, defined as that period during
which the countenance of a person could not be discerned by natural light.
b. Remaining in a Structure
It is often a burglary to remain concealed in a structure with the intent to commit
an offense.
B. ARSON
At common law, arson consists of:
(ii) Burning;
(iv) Of another.
92. CRIMINAL LAW
1. Requirement of a “Burning”
a. Necessity of Fire
At common law, the required damage (see below) must be caused by fire;
damage caused by an explosion does not constitute arson.
2. “Dwelling”
At common law, dwelling was defined for arson as it was for burglary. (See above.)
Most states by statute extend arson to structures other than dwellings. (Note:
Questions on the Multistate Exam that are testing on other arson issues (e.g., malice)
will often assume without saying that the jurisdiction’s arson law applies to structures
other than dwellings.)
5. Related Offenses
a. Houseburning
The common law misdemeanor of houseburning consists of:
2) Burning;
a) In a city or town; or
A. PERJURY
A misdemeanor at common law, perjury consisted of the willful and corrupt taking of a
false oath in regard to a material matter in a judicial proceeding.
1. Materiality
Materiality is an element of this offense, which must be alleged in the indictment and
proved by the prosecution. The statement is material if it might affect some phase or
detail of the trial, hearing, declaration, etc.
2. Contradictory Statements
If a witness has made two contradictory statements at the same proceeding and
admits, before the end of the proceeding, that one of the statements is false, he
cannot be prosecuted for having made the false statement. This is to encourage
witnesses to correct any false statements they may have made before substantial
damage is caused.
3. Civil Liability
In litigation brought under 42 U.S.C. section 1983 (Civil Rights Act), all witnesses—
including police officers—are absolutely immune from civil liability based on their
testimony (i.e., alleged perjury) in judicial proceedings. [Briscoe v. LaHue, 460 U.S.
325 (1983)]
B. SUBORNATION OF PERJURY
A separate offense at common law, subornation of perjury consists of procuring or
inducing another to commit perjury. In some states, this is not part of the perjury statute.
94. CRIMINAL LAW
C. BRIBERY
The common law misdemeanor of bribery consisted of the corrupt payment or receipt of
anything of value in return for official action. Under modern statutes, it can be a felony,
and it may be extended to classes of persons who are not public officials (e.g., athletes).
Either the offering of a bribe or the taking of a bribe may constitute the crime.
D. COMPOUNDING A CRIME
At common law, the misdemeanor of compounding a crime consisted of entering into an
agreement for valuable consideration to not prosecute another for a felony or to conceal
the commission of a felony or whereabouts of a felon. Under modern statutes, the defini-
tion remains essentially the same, except that it refers to any crime (not only felonies). A
few states make it a felony offense.
E. MISPRISION OF A FELONY
At common law, the misdemeanor of misprision of a felony consisted of the failure—by
someone other than a principal or accessory before the fact—to disclose or report knowl-
edge of the commission of a felony. Misprision was distinguished from compounding a
crime in that no passage of consideration was required for the former. Today, most juris-
dictions do not recognize the crime of misprision of a felony. In these jurisdictions, there-
fore, a person is under no obligation to report a crime.
APPROACH TO CRIMINAL LAW 1.
APPROACH TO EXAMS
CRIMINAL LAW
IN A NUTSHELL: A person who actually commits a physical act that has been made illegal
by law with the accompanying state of mind may be charged with and convicted of a crime.
(If either the act or intent is lacking, the defendant is not guilty of that crime.) Additionally, any
person who is an accomplice to that person also may be charged with and convicted of the
crime. The law will list the physical acts and mental state(s) required for crime; these are called
elements of the crime. Crimes include not only actual criminal acts, but also certain prepara-
tory crimes (“inchoate offenses”). The study of crimes requires the study of the elements of
the offense and the elements of a defense that the accused may raise.
A. Physical Act
1. Must be voluntary act
B. Mental State
1. Specific intent
a. Requires doing an act with a specific intent or objective
b. Cannot infer specific intent from doing the act
c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny,
robbery, burglary, forgery, false pretenses, embezzlement, and first degree
premeditated murder
2. Malice
a. Applies to common law murder and arson
b. Generally shown with (at least) reckless disregard of an obvious or high risk that
a particular harmful result would occur
3. General intent
a. Defendant must be aware that she is acting in the proscribed manner and that
any attendant circumstances required by the crime are present
b. Can infer general intent from doing the act
4. Model Penal Code
a. Purposely—conscious object to engage in act or cause a certain result
b. Knowingly—as to nature of conduct: aware of the nature of conduct or that
certain circumstances exist; as to result: knows that conduct will necessarily or
very likely cause result
c. Recklessly—conscious disregard of a substantial and unjustifiable risk that
circumstances exist or a prohibited result will follow, and this disregard is a
gross deviation from a “reasonable person” standard of care
d. Negligently—failure to be aware of a substantial and unjustifiable risk that
2. APPROACH TO CRIMINAL LAW
B. Defenses
1. Withdrawal is an affirmative defense if prior to the crime’s commission
a. If encouraged crime, must repudiate encouragement
b. If provided material, must neutralize the assistance
c. Or may notify police or otherwise act to prevent crime
A. Solicitation
1. Elements:
a. Asking someone to commit a crime
b. With the intent that the crime be committed
2. Defenses:
a. The refusal or the legal incapacity of the solicitee is no defense
b. If legislative intent is to exempt solicitor, that is a defense
B. Conspiracy
1. Elements:
a. An agreement;
b. An intent to agree;
c. An intent to achieve the objective of the agreement; and
d. An overt act (most jurisdictions)
2. Liability—each conspirator is liable for all crimes of other conspirators if foreseeable
and in furtherance of the conspiracy
3. Defenses:
APPROACH TO CRIMINAL LAW 3.
a. Withdrawal
1) General rule—can only withdraw from liability for future crimes; no
withdrawal from conspiracy possible because agreement coupled with act
completes crime of conspiracy
2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts
conspiracy (e.g., informs police)
b. Factual impossibility is no defense
4. Merger
a. No merger—can be convicted of both conspiracy and substantive offense
C. Attempt
1. Elements:
a. Specific intent; and
b. Overt act—a substantial step in the direction of the commission of the crime
(mere preparation not enough)
2. Defenses:
a. Factual impossibility is no defense
1) Factual impossibility arises when defendant sets out to do an illegal act, but
cannot complete the act due to some unknown reason
b. True legal impossibility is always a defense
1) Legal impossibility arises when defendant sets out to do a legal act that he
believes is illegal
c. Abandonment generally no defense after the substantial steps have begun
1) M.P.C. recognizes abandonment as defense if (i) fully voluntary and (ii)
complete (i.e., not a postponement due to unfavorable circumstances)
IV. DEFENSES/JUSTIFICATION
A. Insanity
1. M’Naghten test—disease of the mind caused a defect of reason so defendant lacked
the ability at time of his actions to know wrongfulness or understand nature and
quality of actions
2. Irresistible impulse test—unable to control actions or conform conduct to law
3. Durham test—crime was product of mental disease or defect
4. M.P.C. test—combination of M’Naghten and irresistible impulse tests
B. Intoxication
1. Voluntary intoxication is a defense if it negates “specific intent”
C. Self-Defense
1. Nondeadly force (“NDF”)—a person may use NDF in self-defense if she reasonably
believes force is about to be used on her; no duty to retreat
2. Deadly force (“DF”)
4. APPROACH TO CRIMINAL LAW
D. Necessity
1. Choice of evils—harm to society exceeded by harm of criminal act
a. Objective test
b. Not available if defendant is at fault for creating situation requiring choice
c. Traditionally, choice had to arise from natural forces; modern cases do not have
this requirement
E. Duress
1. Defendant performs a criminal act under a threat of death or serious bodily harm to
him or another
a. Threat must be made by another human
b. Traditionally, threat to property was not sufficient; MPC now recognizes threat to
property as sufficient if harm threatened outweighs harm of criminal act
F. Mistake
1. Mistake of fact
a. Must negate state of mind
b. Malice and general intent crimes—mistake must be reasonable
c. Specific intent crimes—mistake can be reasonable or unreasonable
d. Strict liability—mistake is not a defense
APPROACH TO CRIMINAL LAW 5.
2. Mistake of law
a. Generally not a defense
G. Entrapment
1. Elements:
a. Criminal design originated with authorities; and
b. Defendant was not predisposed to commit crime
V. HOMICIDE
A. Murder
1. Elements of common law murder:
a. Unlawful;
b. Killing of another human being; and
c. With malice aforethought
1) Malice means
a) Intent to kill;
b) Intent to do serious bodily harm;
c) Reckless indifference to unjustifiably high risk to human life (depraved
heart murder); or
d) Felony murder
d. One of these four intents plus a lack of justification and no provocation and the
defendant kills—what is the crime? Common law murder
2. Defenses:
a. Justification (self-defense); and
b. Provocation (reduces the crime to voluntary manslaughter)
3. Felony murder:
a. If defendant has a substantive defense to the underlying felony, he usually has
a defense to felony murder; “procedural” defenses (e.g., statute of limitations)
generally no defense
b. The killing must be foreseeable
c. Deaths caused while fleeing from a felony are felony murder, but deaths that
arise after defendant has found some point of temporary safety are not
d. Majority rule—defendant is not liable for felony murder for the death of a
co-felon as a result of resistance by the victim or the police
B. Manslaughter
1. Two kinds—voluntary and involuntary
2. Voluntary manslaughter
a. Elements:
1) Adequate provocation;
2) Gave rise to heat of passion; and
3) No adequate cooling-off period
6. APPROACH TO CRIMINAL LAW
C. Causation
1. General rule—defendant is liable for all natural and probable consequences of his
conduct unless the chain of causation is broken by the intervention of some super-
seding factor
a. Superseding factors:
1) Acts of nature;
2) Coincidence; or
3) Negligent medical care not a superseding factor unless gross negligence
or intentional malpractice
b. Two commonly encountered rules:
1) Hastening an inevitable result; and
2) Simultaneous acts by two or more parties
c. Add a causation analysis to any homicide question that presents the issue
more danger than that necessarily involved in the commission of the other
crime
e. Rape
1) Any penetration of the female sex organ by the male sex organ (many
states have made gender neutral);
2) Without the victim’s effective consent;
a) Intercourse accomplished by actual force;
b) Intercourse accomplished by threats of great and immediate bodily
harm;
c) Intercourse where the victim is incapable of consenting due to uncon-
sciousness, intoxication, or mental condition; or
d) Intercourse where the victim is fraudulently caused to believe that the
act is not intercourse
3) In the absence of a marital relationship between the woman and the man
(most states have abolished or modified this element)
f. Larceny
1) Taking;
2) And carrying away;
3) Of tangible personal property;
4) Of another with possession;
5) By trespass;
6) With intent to permanently deprive that person of her interest in the
property
g. Embezzlement
1) The fraudulent;
2) Conversion;
3) Of personal property;
4) Of another;
5) By a person in lawful possession of that property
h. False pretenses
1) Obtaining title;
a) If title is not obtained, the crime is larceny by trick
2) To personal property of another;
3) By an intentional false statement of a past or existing fact;
4) With intent to defraud the other
i. Robbery
1) A taking;
2) Of personal property of another;
3) From the other’s person or presence;
4) By force or threats of immediate death or physical injury to the victim, a
member of his family, or some person in the victim’s presence;
5) With the intent to permanently deprive him of it
j. Receipt of stolen property
8. APPROACH TO CRIMINAL LAW
CLASSIFICATION OF CRIMES
Was the crime committed Property Was the crime against the habitation
against property or against or against personal property?
a person?
Burglary Larceny
Did a death result?
Arson Embezzlement
Yes No
False Pretenses
Murder Battery
Robbery
Manslaughter Assault
Kidnapping
Rape
CMR Chart
2. CRIMINAL LAW CHARTS
Intoxication
Voluntary Voluntary, intentional taking Defense to specific intent
of a substance known to crime if intoxication prevents
be intoxicating formation of required intent
CMR Chart
CRIMINAL LAW CHARTS 3.
JUSTIFICATION DEFENSES
Effectuate Arrest
Police If officer reasonably believes Only to prevent escape of felon,
force is necessary to arrest and police officer reasonably
believes that the suspect
threatens death or great
bodily harm
Private Person If crime in fact committed and Only to prevent escape of person
reasonable belief that this person who actually committed felony,
committed it and person reasonably believes
that the suspect threatens death
or great bodily harm
CMR Chart
4. CRIMINAL LAW CHARTS
HOMICIDE CRIMES
No homicide
Voluntary Murder liability
manslaughter
Note: This chart will lead you to the prima facie homicide that defendant committed. You must
then decide whether any defenses apply.
CMR Chart
CRIMINAL LAW CHARTS 5.
PROPERTY CRIMES
CMR Chart